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TMI Blog2013 (3) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the course of the assessment proceedings, the A.O. observed that the assessee has shown purchase of steels from M/s. Maulik Steel Corporation and M/s. Vaishali Steel Enterprises. The A.O. issued summons u/s.131 on the addresses mentioned in the bills. The addresses were found to be non existence. When confronted this fact to the assessee, the assessee furnished new addresses in respect of these two parties. The A.O. observed that even the new addresses were false. Thereafter, one Shri Shrenik Kantilal Shah incharge to these two parties appeared before the investigation wing. It was the claim of the said Shri Shrenik Kantilal Shah that the books and related documents were damaged/lost in the floods which took place in the city of Mumbai. The A.O. formed a belief that the purchase of steel from these two parties was not genuine. The assessee submitted the copies of acknowledgement of return filed in the case of M/s. Maulik Steel Corporation in which bank account no. with Union Bank of India, Mulund (E), branch was given. On enquiries with the bank during the course of the assessment proceedings the bank confirmed that no such account was maintained in the bank either in the name o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee is directed to furnish the bank details including the cheque numbers by which payments have been made to these two parties. As the alleged payment is by account payee cheque, money has flown from one identified bank account to another identified bank account. The A.O. is directed to verify the recipient bank to which the money has gone from the assessee's bank account and decide the issue afresh after giving a reasonable opportunity of being heard to the assessee. Ground no. 1 is accordingly allowed for statistical purposes. 6. Ground no. 2 relates to the grievance that the Ld. CIT(A) ought to have allowed the additional ground of appeal raised before him in respect of the claim of deduction u/s.80-IB(10) in respect of Madhav Srishti, Phase I. The facts giving rise to this grievance shows that during the course of the assessment proceedings, the assessee did not claim deduction u/s.80-IB(10) on project of Madhav Srishti, Phase I on the pretext that it also contain commercial built up area. However, subsequently when the Hon'ble Jurisdictional High Court in the case of CIT vs. Brahma Associates 333 ITR 289 has allowed prorata deduction in respect of claim u/s.80-IB(10), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less than 1500 sq. ft. The project also has 10 shops whose combined built up area is 1975 sq. ft. However, the A.O. further observed that Madhav Srishti, Phase II has a club house and swimming pool, admeasuring about 4000 sq. ft. The club house consisted of a hall and four guest rooms. It also had a gym. The A.O. was of the firm belief that these amenities are for commercial exploitation, therefore, hit by clause (d) of section 80-IB(10). The A.O. sought explanation from the assessee as to why its claim of deduction u/s.80-IB(10) should not be disallowed. The assessee filed a detailed reply claiming that clause (d) has been inserted w.e.f 01.04.2005. Therefore, the issue is squarely covered by the decision of the Hon'ble Jurisdictional High Court in the case of Brahma Associates(supra) and by the decision of the Tribunal in the case of Saroj Sales Organisatio in ITA No.4008/M/2007. The assessee further explained that the swimming pool and the club house facilities are meant for the residences of Madhav Srishti, Phase II and no outsiders is allowed to enjoy these facilities. However, the A.O. observed that no such conveyance/transfer has been brought on record by the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 10 shops exceeded the limit prescribed under clause (d) of section 80-IB(10). It is the contention of the assessee that the club house facilities including the swimming pool is only meant for the recreation of residents of the Madhav Srishti, Phase II. Therefore, it cannot be said that the club house facilities including the swimming pool form a commercial built up area. It is the allegation of the Revenue that no conveyance/transfer has been brought on record by the assessee. Therefore, in the interest of justice and fair play , for the year under consideration we restore this issue back to the files of the A.O. The assessee is directed to substantiate its claim that the said club house facilities including the swimming pool have been actually transferred to the residents of Madhav Srishti, Phase II. The A.O. is directed to verify the claim of the assessee after giving a reasonable opportunity of being heard. This ground is allowed for statistical purposes. 20. In the result, the appeal is allowed for statistical purpose. (4) ITA Nos. 4799/M/2011 (Assessee) & 5197/M/2011 (Department) (A.Y. 2006-07) 21. In ITA No.4799/M/2011 the only ground raised by the assessee is identical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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